Special counsel seeks delay in Trump election subversion case in D.C.

Prosecutors with special counsel Jack Smith on Thursday asked for a three-week delay in former president Donald Trump’s 2020 election obstruction case, saying the Justice Department needed more time to analyze the Supreme Court’s ruling last month that presidents have broad immunity from prosecution after leaving office.

U.S. District Judge Tanya S. Chutkan had set a Friday deadline for both sides to propose how they wanted to proceed and set a hearing for Aug. 16 in the federal case in Washington, D.C., after the Supreme Court returned the case to her control last week. The justices ruled 6-3 along ideological lines last month that Trump and other presidents are absolutely immune from prosecution when carrying out their core constitutional powers but can face trial for private conduct or for official acts under narrow exceptions to be hammered out by lower courts.

But one day ahead of that initial deadline, Smith’s team asked to have until Aug. 30 to brief the court on a proposed schedule for further proceedings and for a hearing to be set sometime in September. Lawyers for Trump — who by then will be in the final post-Labor Day sprint to the November election as the Republican nominee for president faces Vice President Kamala Harris (D) — did not object to the delay.

In a two-page joint report to Chutkan, prosecutor Molly Gaston wrote on behalf of Smith’s office late Thursday that “the government continues to assess the new precedent” set by the high court, including through internal Justice Department consultations, but that it “has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.”

Chutkan is expected to rely on the parties’ submissions as she decides which if any of Trump’s efforts to overturn the 2020 election while president may be prosecutable. A trial will not be possible before the election, because whatever the judge decides is expected to wind up back before the Supreme Court next year.

Trump’s 45-page indictment in D.C. alleges he conspired to overturn the legitimate results of the 2020 election by using knowingly false claims about election fraud to obstruct the government’s processes for collecting, counting and certifying the vote.

The indictment alleges he did so in five ways: by pressing officials in key swing states to ignore the popular vote and flip electoral votes from Joe Biden to Trump; attempting to submit fraudulent slates of electors from such states; threatening Justice Department leaders to open sham investigations and falsely claim fraud to get states to join the plan; pressuring Vice President Mike Pence to use his ceremonial role overseeing Congress’s election certification on Jan. 6, 2021, to overturn the results; and exploiting the disruption of the U.S. Capitol riot to get Congress to help.

The Supreme Court returned the case to Chutkan, Trump’s trial judge, to decide three questions: Which alleged acts by Trump fall under the executive branch’s exclusive constitutional authority and are therefore immune from prosecution? Which are official acts but prosecutable because they pose no danger of intruding on the power or function of the presidency? And what acts can be prosecuted because they involve private conduct, such as, possibly, actions taken by Trump as a candidate, and not as an officeholder?